Supreme Court Justices always seem to graze in pairs. Justices Roberts and Alito almost seem like the same person, Scalia and Thomas have been swapping mating calls for years, and Justices Breyer and Ginsburg are trying to fight the (conservative) man(men) for years. I was prompted to think more about some of these dynamic duos by an otherwise standard article from the NYTimes Opinionater.
One theory floating around right now argues that the ‘Pope’s Dream Team‘ may or may not be as ideologically well-grounded as its voting record would suggest. I agree and disagree. I do believe that the Court’s conservative majority is very subtlety divided into a few subclasses, but I also believe that those divisions are unlikely to translate into important voting changes.
Per SCOUTSblog’s Statpack, Chief Justice Roberts and Junior Justice Alito are the justices with the most compatible judicial philosophies. Per my index, they new kids on the block disagreed in only four cases: United Haulers, Zuni Public School District, Watters v. Wachovia, and Cunningham v. California.
United Haulers v. Oneida provides the most interesting analysis because the Chief Justice wrote the majority opinion and the Junior Justice wrote the dissenting opinion. I wrote about the case when it was first handed down here but to summarize, Justice Roberts ruled in favor of the power of local communities to regulate dormant commerce clause behaviors and Justice Alito ruled in favor of big business. Both of these are standard conservative talking points and it isn’t surprising to see Chief Justice Roberts ruling in a way similar to his mentor and predecessor Chief Justice Rehnquist. It is equally expected that Justice Alito will rule in favor of big business interests.
Justices Scalia and Thomas were the court’s next closest couple. They dissented (were away from each other) in only five cases this year. Each of those cases involved one Justice or the other being the sole dissenting vote in a case while the other was in the near-unanimous majority. The most interesting difference between these two definitely lies in the lengths that they are willing to go to in order to achieve their desired ends. Justice Thomas has developed quite a reputation or filing concurring dissents that state that he agrees with a certain side, but he would have gone even further and completely gotten rid of a given precedent. In Morse, he declared that Tinker was incorrectly decided. He did the same thing in United Haulers, Parents Involved, and Gonzalez.
The Four Horsemen are certainly different people with different views. While it isn’t impossible that they would vote apart in an important case, it also isn’t terribly likely that they would be willing to weaken their general position by voting against each other on a given matter. Oh, they’re also relatively young so they are going to be around for a while. More good news for liberals!